Free Markets, Free People

Legal Affairs


There is no voter fraud, except when there is voter fraud

Like in the MN Senate race that put Al Franken in office and provided Senate Democrats with their 60th vote.

Byron York provides the short version of the story and what was found subsequently:

In the ’08 campaign, Republican Sen. Norm Coleman was running for re-election against Democrat Al Franken. It was impossibly close; on the morning after the election, after 2.9 million people had voted, Coleman led Franken by 725 votes.

Franken and his Democratic allies dispatched an army of lawyers to challenge the results. After the first canvass, Coleman’s lead was down to 206 votes. That was followed by months of wrangling and litigation. In the end, Franken was declared the winner by 312 votes. He was sworn into office in July 2009, eight months after the election.

During the controversy a conservative group called Minnesota Majority began to look into claims of voter fraud. Comparing criminal records with voting rolls, the group identified 1,099 felons — all ineligible to vote — who had voted in the Franken-Coleman race.

And what has happened since?

And so far, Fund and von Spakovsky report, 177 people have been convicted — not just accused, but convicted — of voting fraudulently in the Senate race. Another 66 are awaiting trial. "The numbers aren’t greater," the authors say, "because the standard for convicting someone of voter fraud in Minnesota is that they must have been both ineligible, and ‘knowingly’ voted unlawfully." The accused can get off by claiming not to have known they did anything wrong.

Still, that’s a total of 243 people either convicted of voter fraud or awaiting trial in an election that was decided by 312 votes.

And, of course, the probability is these felons absolutely knew they were breaking the law and fraudulently voted anyway.

Obviously making a connection between them and Democrats is likely impossible, but it does point to something that the left consistently denies – the existence of voter fraud.

It exists.  Denying it exists, as the left does, only damages their credibility. 

Many times it is the system itself which enables fraud to be carried out.  Incompetence and inefficiency within government agencies charged with supervising voting are as much the problem as the frauds.  For instance:

The Houston-based True the Vote said it has identified 160 counties across 19 states with more registered voters on their rolls than eligible live voters. This chart highlights the 19 states and how they voted in the 2008 election.

Keeping the voter roles current and ensuring all registered voters are eligible would seem to be a primary mission of any state’s voter bureaucracy, wouldn’t it?

Yet what did we recently see – the Obama DoJ go after the state of Florida for doing its job and purging it’s voter roles of the dead and ineligible.  You’d think that they’d encourage such an action because it helps guarantee the integrity of the voting system.

But instead, it tried to stop it.

There is all sorts of fraud.  That like York points out.  That like this case in Miami:

It’s a shady world, as the case of 56-year-old Deisy Cabrera in Hialeah shows.

Cabrera was charged Wednesday with a state felony for allegedly forging an elderly woman’s signature on an absentee ballot, and with two counts of violating a Miami-Dade County ordinance banning the possession of more than two filled-out absentee ballots.

Much of the fraud takes place within the early voting venues.  As the above case illustrates, preying on nursing home residents is only one of many ways fraudulent ballots are cast.

However the Democrats contend that voter ID laws are a means of stopping a problem that doesn’t exist.  They claim there is very little if any fraud to be found in same day voting.  Of course that’s hard to substantiate when voter roles are larger than the pool of eligible voters in many areas and no on is asked to prove who they are. 

The other complaint is that voter ID laws “disenfranchise” minorities and the poor.  Yet Georgia’s experience directly contradicts that claim with minority and overall voter turnout increasing in the elections following the implementation of a voter ID law.

Bottom line: the integrity of the voting system is paramount to instilling confidence in the citizenry that their voices are being truly heard.   If ever there seemed to an issue that should be truly bi-partisan, this would be it.  Yet there are very clear battle-lines drawn with one side claiming fraud doesn’t exist (and they’re factually incorrect about that) and the other saying it does and something should be done about it.

Guess which side I come down on?

~McQ

Twitter: @McQandO


Obama campaign moves to restrict military voting in Ohio

Breitbart’s Mike Flynn reports:

President Barack Obama, along with many Democrats, likes to say that, while they may disagree with the GOP on many issues related to national security, they absolutely share their admiration and dedication to members of our armed forces. Obama, in particular, enjoys being seen visiting troops and having photos taken with members of our military. So, why is his campaign and the Democrat party suing to restrict their ability to vote in the upcoming election?

On July 17th, the Obama for America Campaign, the Democratic National Committee, and the Ohio Democratic Party filed suit in OH to strike down part of that state’s law governing voting by members of the military. Their suit said that part of the law is "arbitrary" with "no discernible rational basis."

Currently, Ohio allows the public to vote early in-person up until the Friday before the election. Members of the military are given three extra days to do so. While the Democrats may see this as "arbitrary" and having "no discernible rational basis," I think it is entirely reasonable given the demands on servicemen and women’s time and their obligations to their sworn duty.

Flynn cites the National Defense Committee which reports:

[f]or each of the last three years, the Department of Defense’s Federal Voting Assistance Program has reported to the President and the Congress that the number one reason for military voter disenfranchisement is inadequate time to successfully vote.

So here is a law actually trying to provide a little extra time to address the problem cited (btw, the members of the military would most likely have to show their military picture ID to be granted the opportunity to vote during that “extra time”).  Why the resistance from the Obama campaign and Democrats?   Why the intent to disenfranchise military voters?

If the polls are to be believed concerning how the military is likely to vote, it wouldn’t favor Obama or the Democrats.  And, of course, Ohio is a swing state.  So they want no extra time allowed for the military to vote (and don’t expect the DoJ to jump in here and take the side of the military either).

Mystery solved.

But hey, the military is still useful as props during photo ops and when they help burnish the C-i-C’s rep by killing bad guys like Osama.  Voting?  Yeah, not so much.

~McQ

Twitter: @McQandO


DEA sting gone wrong violated Texas truck owner’s rights

Need a story to get you all fired up this morning?  Looking for something to make you see red?

The DEA provides it (from the Houston Chronicle via NRO):

The phone rang before sunrise. It woke Craig Patty, owner of a tiny North Texas trucking company, to vexing news about Truck 793 — a big red semi supposedly getting repairs in Houston.

“Your driver was shot in your truck,” said the caller, a business colleague. “Your truck was loaded with marijuana. He was shot eight times while sitting in the cab. Do you know anything about your driver hauling marijuana?”

“What did you say?” Patty recalled asking. “Could you please repeat that?”

The truck, it turned out, had been everywhere but in the repair shop.

Commandeered by one of his drivers, who was secretly working with federal agents, the truck had been hauling marijuana from the border as part of an undercover operation. And without Patty’s knowledge, the Drug Enforcement Administration was paying his driver, Lawrence Chapa, to use the truck to bust traffickers.

The concept of private property?  Completely ignored.  Permission?  We don’t need no stinkin’ permission.  We’re the federal government.  We’re the DEA.

But eight months later, Patty still can’t get recompense from the U.S. government’s decision to use his truck and employee without his permission.

His company, which hauls sand as part of hydraulic fracturing operations for oil and gas companies, was pushed to the brink of failure after the attack because the truck was knocked out of commission, he said.

Patty had only one other truck in operation.

In documents shared with the Houston Chronicle, he is demanding that the DEA pay $133,532 in repairs and lost wages over the bullet-sprayed truck, and $1.3 million more for the damage to himself and his family, who fear retaliation by a drug cartel over the bungled narcotics sting.

Out of control?  That’s a vast understatement.  This is like Fast and Furious Jr.  Who thought this up? Who approved it?  Why didn’t they seek the permission and cooperation of the owner of the business and property?  Where in the world do they get off commandeering private property and endangering the life and livelihood of a citizen without seeking his okay to use his property?

The operation was a fiasco:

At least 17 hours before that early morning phone call, Chapa was shot dead in front of more than a dozen law enforcement officers – all of them taken by surprise by hijackers trying to steal the red Kenworth T600 truck and its load of pot.

In the confusion of the attack in northwest Harris County, compounded by officers in the operation not all knowing each other, a Houston policeman shot and wounded a Harris County sheriff’s deputy.

17 hours before the owner of the truck was notified and that notification didn’t come from either the police or the DEA.  The only thing the DEA didn’t commandeer for this operation was a clown car.  Said Patty:

"I was not part of this," he said. "I had absolutely no knowledge of any of it until after it happened."

For its part, the DEA has not admitted that it was using Chapa as a spy because its official policy is not to comment on whether someone was an informant.

Lisa Johnson, a spokeswoman for the DEA Houston Division, confirmed that Patty’s demand had been received and noted that it would be investigated by the agency. But the Chronicle established Chapa was an informant based on interviews with multiple law-enforcement officials who spoke on the condition they not be named, and later by courtroom comments of prosecutors.

So now the DEA will drag its feet, pretend like it is investigating this, refuse to admit anything, and, as is fairly standard and routine behavior for government agencies violating the rights of the citizens these days, obfuscate, evade and attempt to block every move to shine a light on this operation.

This is outrageous.  And, if the facts presented by the Chronicle are true, whoever put this together and executed it deserves to be put on trial and put in jail.  That’s right, jail.  We want someone held accountable for this travesty for a change.

As for Patty, pay the man, DEA.  You screwed up big time, you were wrong to commandeer his property and put his life in danger.  You had no right to do any of that and you owe him the chance to get his life and that of his family back in order.

~McQ

Twitter: @McQandO


ObamaCare: The fallout

I’ve read all the pundits and listened to all the talking head elite tell us how incredibly nuanced and subtle the Chief Justice was by approving the law as a tax.  In fact one described him as “"a chess master, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."

I say “BS”.  He sold out.  He ended up being more worried about the perception of the court and his legacy than upholding the Constitution of the United States.  And I’m not the only one who feels that way.  The Wall Street Journal also throws a punch or two at Roberts:

His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government’s core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court’s legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice’s cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court’s most important role is to protect liberty when the political branches exceed the Constitution’s bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

Precisely.  And Roberts caved.  From the lecture the court got from Obama during a State of the Union address till now, he became a cautious old lady more concerned with his reputation in perpetuity than serving the people and the Constitution he swore to uphold. 

That, as the WSJ says, is “more corrosive to the rule of law and the Court’s legitimacy” than anything he could have done.  He didn’t have the spine to take the heat from a controversial but proper decision so he took the easy way out.  He threw away his integrity for popularity and peace.   A judicial Chamberlin if you will.

Jacob Sullum at Reason gives you the rest of the bad news:

The Journal notes that the tax power endorsed by Roberts is no less sweeping and dangerous to liberty than the Commerce Clause argument he rejected. "From now on," it says, "Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires." Worse, as I pointed out last week, the tax trick allows Congress to dispense with claims about interstate commerce altogether. As long as a mandate is disguised as a tax (and as long as it does not violate explicit limits on federal power such as those listed in the Bill of Rights), "because we said so" is reason enough.

Mandates “disguised as a tax” give Congress almost limitless power to control your life.  That is the power Roberts handed our elected officials. 

Oh, but the apologists say, that will never happen.  They’d never abuse that power.  Yeah, a little lesson in history.   When the Constitutional amendment for the income tax was being debated some wanted to put a 2% limit on it. “Don’t do that,” the others said, “it will encourage Congress to immediately go that high.”

And here we are.

The Congress no longer need wrestle with intrusion in your life via the Commerce clause.  Justice Roberts just gave them an infinitely easier route that doesn’t require a Constitutional check.  He effectively removed the Court from its role in protecting you from increasing government intrusion.

And clever politicians will find a way to use that power he handed them when necessary.  Don’t you ever doubt that.

As for Roberts.  I have little or no use for a man who sits on the bench of the Supreme Court and puts politics in front of the Constitution he’s sworn to uphold.

~McQ

Twitter: @McQandO


Is the fate of our liberty being decided today?

Just some random thoughts as we await the Supreme Court ruling on healthcare. 

I can’t help thinking the title is precisely what is on the line today.  Given the implications of upholding that odious law, I can’t help but feel this is indeed the most momentous decision in my lifetime.  Oh, certainly, there have been many other important ones, to be sure, but never one that had the potential, at least as I see it, to give government carte blanc to expand and intrude into my life.

I’ve said it often, liberty (freedom) equals choice.  Today’s decision will either uphold our ability to make individual choices (to include not having health insurance for whatever reason) in our lives or limit them – severely.

You know, when I was a kid I had to read the Constitution.  I didn’t find it either difficult to read or understand.  Yet since then, we’ve seen veritable oceans of words telling us what we read and the common understanding of what those words in the Constitution mean isn’t what they really mean.   And the way the Constitution is treated by our politicians is simply shameful (and that applies to both sides).

It has also been ironic to me to see the “living Constitution” crowd whine and complain that the SCOTUS may be overturning “years of precedent”.  That’s a true traditionalist argument.  In fact, though, if it does strike down the mandate, then it will be a traditionalist ruling.

I’m not sure how the left will reconcile that without their heads exploding.

I’m also convinced that even if overturned, either partially or completely, this is only the beginning of the fight to have government take over health care.  Next step?  Single payer.

In fact, there are probably many on the left who actually hope this monstrosity will be overturned so they can proceed to what has always been the extreme left’s dream – single payer, government run health care.  And, of course, Medicare provides precedence for that, doesn’t it.

So as we sit here waiting and hoping, it might behoove us to consider that even if the decision goes as we hope it will go, spiking the ball will be premature.

A ruling against the law won’t signal the end of this fight.  I’m afraid it will only signal the end of round 1 of a multi-round championship fight.

Whatever the ruling, I worry for our country.

~McQ

Twitter: @McQandO


Supreme Court strikes down most of AZ immigration law, Homeland Security strikes down the rest

I won’t belabor you with a full detailing of how the court ruled yesterday on Arizona’s immigration laws except to say most of it was struck down with the Court supporting the “supremacy clause” as its basis for doing so.

However, it did find for AZ in one part of the law – the requirement to produce identification, if asked, proving citizenship if law enforcement is has a reasonable suspicion the person is in the country illegally.

Note the last word.

Illegally”.

You see, that’s the word that is often left off when discussing immigration, as in “the right is anti-immigration”.  Of course that’s a totally inaccurate assertion.  The vast majority of the right is against illegal immigration.  Legal immigrants are both wanted and welcome.

That said, we all know that our immigration system is flat out broken.  It sucks.  It is terrible.   And in this day and time, given advances in the speed and efficiency of communications, there is absolutely no reason that should be the case.  Upgrading and speeding up the system should be a priority.

But that doesn’t change the fact that people who go around that antiquated system and take it upon themselves to enter the US illegally are lawbreakers.

So, to yesterday’s ruling:  Arizona’s law was a result of the federal government’s refusal to enforce existing immigration law.  It was a law born of frustration.  Arizona is a border state.  Non-enforcement was causing strains on the state that for the most part, non-border states didn’t have to deal with.   And, after numerous appeals to the federal government to enforce the laws of the land, the state took the drastic step of passing its own laws that mirrored the federal statutes.

Yesterday the Supreme Court struck most of them down.  I understand and don’t necessarily disagree with the basis of the ruling. I understand the importance of the “supremacy clause”.  But I also understand when it is improperly used – in this case to not enforce existing law.  That is not a choice made by an administration dedicated to the rule of law.   That’s the choice made by one which is driven by an ideological agenda.

To make the point, yesterday after the ruling, Homeland Security, the executive agency that ICE falls under, made it clear that it would not cooperate on section 2 (b) of the AZ law, the section the Supreme Court upheld, effectively nullifying it:

The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.

Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport…

Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, ICE will tell the local police to release the person

On Monday the administration officials also said they are ending the seven 287(g) task force agreements with Arizona law enforcement officials, which proactively had granted some local police the powers to enforce immigration laws.

Or, more simply, the President has directed his agencies not to enforce the law of the land, a clear violation of his oath of office, but in full compliance with his recent enactment of the “DREAM act” by fiat.

By the way, that raging righty, Mickey Kaus updates us on what the real results of Obama’s decision concerning a certain type of illegal really means:

The maddening details of Obama’s DREAM Decree are becoming clearer. As this CIS report notes, 1) The decree doesn’t just apply to illegal immigrants who were “brought to this country by their parents.” It also would give work permits to those who snuck across the border by themselves as teenagers. “Through no fault of their own” is a talking point for DREAM proselytizers, not an actual legal requirement. 2) The same goes for the phrase “and know only this country as home.” That’s a highly imaginative riff on the decree’s actual requirement, which is for 5 years “continuous residence.”  It turns out “continuous residence” doesn’t mean what you think it means. “Immigration attorneys have been successful in getting immigration courts to whittle this down to a point where it is almost meaningless,” says CIS’s Jon Feere. As an illegal immigrant you can go back home abroad for multiple 6-month stints during those five years–but, if precedent holds, in Janet Napolitano’s eyes you will still “know only this country as home.” …

He has a couple of updates that are worth the read as well that show this for the broad attempt at amnesty it really is.

Look … this may indeed be how it all ends up, but this isn’t how it should be done.  There’s a clear, legal and Constitutional path for changing laws we don’t like or think need to be changed … that is if we are a nation of laws. 

Barack Obama seemed to think that was important once:

I believe that we can be a nation of laws and a nation of immigrants.

Now?  Not so much.

So here we have the nation’s chief law enforcement officer refusing to enforce the law.

His excuse is he’s frustrated with the lack of movement in Congress (of course he’s exerted no leadership or effort to resolve the issue)?

Hey, wait, wasn’t that the same sort frustration Arizona expressed about the administration’s refusal to enforce the law of the land?

So why is Obama’s refusal to enforce the law rewarded while Arizona’s attempt to enforce it isn’t?

Because George Orwell is alive and well and renaming his book “2012”.

~McQ

Twitter: @McQandO


UAVs, extrajudicial and targeted killings

If you haven’t wondered about the morality of this or its legality, I’d be surprised.

It’s easy to overlook, after all it’s the “good guys” doing it, right?

While I usually ignore most of what the UN says, I think there’s some substance here:

The US policy of using aerial drones to carry out targeted killings presents a major challenge to the system of international law that has endured since the second world war, a United Nations investigator has said.

Christof Heyns, the UN special rapporteur on extrajudicial killings, summary or arbitrary executions, told a conference in Geneva that President Obama’s attacks in Pakistan, Yemen and elsewhere, carried out by the CIA, would encourage other states to flout long-established human rights standards.

In his strongest critique so far of drone strikes, Heyns suggested some may even constitute "war crimes". His comments come amid rising international unease over the surge in killings by remotely piloted unmanned aerial vehicles (UAVs).

A lot of times I apply the “what if some other country was doing this to the US” standard to things we do.  Take Fast and Furious.  What if Mexico had run that operation on us?  We’d be “furious”.  We’d condemn them roundly.  We’d be seeking redress.  We’d be initiating some sort of action.

Now given, in certain of the cases with UAV’s, governments of countries effected are cooperating and, in some cases, even giving permission.  But that isn’t always the case as we well know.  In fact, many times this country just executes an extra-judicial and/or targeted killing without the knowledge or consent of the government of the state in which it takes place.

As you might expect, there’s a lot of death of innocents that is euphemistically waved away as “collateral damage”.

Certainly the use of UAVs as a military asset that can both gather intel and be used to attack legitimate enemies makes sense.  But we’re into a very gray moral area with “extra-judicial” and targeted killings in other countries. 

The irony, of course, is the administration that arrogantly condemned its predecessor for secret jails and military tribunals and insisted that the judicial system be used in the war on terror instead now acts as judge, jury and executioner in these UAV killings. 

I just wondered what we’d think if Pakistan began flying UAVs into the US and knocking off politicians who supported UAV strikes in Pakistan, calling them “war criminals” and all?

Think we’d find that outrageous, a violation of our sovereignty and international law and be whining to the UN about what was being done by that country (not to mention beating the war drums here at home)?

Yeah, me too.

Would we have a legal or moral leg to stand on?

~McQ

Twitter: @McQandO


With the options available, why did Obama choose to invoke executive privilege?

That, at least to me, is the pregnant question.  He had a number of other options but  4 months from a critical election, chose the most controversial and potentially damaging one.

Why?

Let’s begin with a quote from  a former White House counsel from a Powerline post:

Even with his fawning press, [President Obama] will pay a price for this one. He knows this, meaning that the documents now to be withheld must be dynamite. They have to show either that Holder knew what was going on with Fast and Furious and approved it, or that he directly committed perjury in his Congressional testimony, or both. I just can’t see any other explanation for such a risky move.

Wasn’t the Washington Post just covering big time the 40th anniversary of Watergate? I wonder how much coverage this one will get.

That’s the result of the move – speculation that the documents being withheld point to perjury by Holder or the President, or both.

So let’s break this down a bit.  If it was all about Holder, why would the president risk this sort of a controversial move this close to an election.  It’s not like he’s never thrown anyone under the bus.  In fact James Carville is on record advising Obama to dump Holder.

Obama had the option, then, of letting Holder face contempt charges (not much happens as we’ve seen in the past, to those who are served with contempt of Congress charges) and drag out the document release until after the election.

With the election season gearing up, it is likely that while the controversy would have been an issue, it wouldn’t have been a major issue.   Now it certainly is.

He could have asked Holder to resign.  He could have then used the opportunity to appear as a statesman, a leader and bi-partisan all in one fell swoop.  Depending on how he handled that it could actually have been a positive for him heading into an election.  In the meantime, an acting AG could continue to delay on providing documents.

But he did neither of those things.  For some unknown reason (at least to this point) he chose to do the least likely and most politically damaging thing – invoke executive privilege.  As the lawyer quoted has said, those documents must be “dynamite” to have the president make this move.

And, unsaid by the lawyer is the speculation that the documents show the involvement of the White House to a degree that is damaging – apparently more damaging than the speculation and attention this move by the President has brought.

David Kopel at Volokh Conspiracy gives you a great history of the controversy.  As for the documents Kopel notes:

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

Matthew Boyle at the DC caller points out that Holder has retracted two previous statements he made to Congress where he gave them inaccurate information in an attempt to blame previous AGs or administrations.  It seems that’s a standard operating procedure with all parts of this administration.  So Holder is left holding the bag all by himself on this one, or so it seemed, at least, to the point that executive privilege was invoked.

That brings us to these 4 point by Todd Gaziano at the Heritage Foundation about the use of executive privilege:

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.

Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.

Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.

And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).

The key point, of course, is executive privilege cannot be used to “shield wrongdoing”.  While it is speculative, it appears highly likely – given the other options available – that executive privilege is being used for precisely that reason in this case.

Additionally, given the choices available to the President, it is not at all out of bounds to speculate that the most transparent administration in history is trying desperately to hide something even more terrible than the political fallout from this choice.

The White House cites internal discussions and ongoing investigations are the reason for its denial and claims the investigations would be jeopardized with the release of the documents.  But, as Gaziano points out, accommodations can be made in that regard.  The total number of documents requested is 1,300.  The White House is simply refusing to cooperate or accommodate.

Why?

We’re still left with that question.  

And the answer, given the  actions to date, lead to some logical speculation – what is contained in those documents is much more damaging politically than the damage done by the decision.  Additionally, Obama can’t afford to let Holder go because if he does there’s the potential that Holder will then spill the beans.

Oh, and finally, this move has suddenly brought Fast and Furious to page one and the top of the newscast like nothing else could.  The majority of the country, which was mostly ignorant of this scandal are now in the loop.

As the cited former White House counsel said, “the documents now to be withheld must be dynamite.”  In fact, they must be so explosive that the White House is desperate enough to try to weather this self-inflicted political storm in lieu of exposing them.

That says a lot.

~McQ

Twitter: @McQandO


Hints about how the Supreme Court will rule on ObamaCare?

File this under speculation, because that’s essentially what it is (but you have to do a little of it every now and then, and besides, it’s a sport when talking about pending SCOTUS decisions), but still speculation with some possibility of being accurate.

It seems, according to  Avik Roy, that June 25th is most likely the day we will learn the fate of ObamaCare from the Supreme Court.

“Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

And how will the ruling go?  Well, Ruth Bader Ginsberg has said previously that there are some “sharp divides” among the justices.

But, again according too Roy, Ginsberg may have also hinted she’s on the “dissenting” side, meaning that she’s on the minority side of the decision.  The basis for that claim?

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Or that may signal nothing at all (she may simply have been speaking academically about “dissenting opinions”).  The key, if we accept the premise that she’s on the dissenting side of this particular ruling is what that means.

Roy mentions that the divide may not be associated with killing the mandate – there may be more than 5-4 agreement on that subject (he suggests it is almost a given that Kennedy will join the conservatives on the court to kill the mandate).   The divide may be with what to do with the law if the mandate is killed:

The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

As far as I’m concerned, I’d like to see the entire law struck down.  However, I’m now wondering whether or not that will play out. 

Roy also mentions Antonin Scalia’s recent book and asserts that it hints that Scalia is on the side of dumping the mandate and the law in its entirety.  He wonders if Scalia, given his writing about the scale of the Commerce Clauses expansion and Scalia’s unhappiness with that, has chosen ObamaCare as the case he’s chosen for judicial pushback. 

So, again, based on this speculation, one might surmise that the court has found the individual mandate to be unconstitutional, but is struggling with how much or how little of the law to strike down.

Of course, the individual mandate is the heart and soul of the bill.   It is the payment mechanism that undergirds the entire ponzi scheme program.   No mandate, no money, no expanded risk pool, not much of anything if it goes.

So perhaps even if the court leaves much of ObamaCare standing, it will end up being a Pyrrhic victory for its supporters as the law will then be unsustainable as it exists (minus the mandate).

I guess we’ll see on or around the 25th.

~McQ

Twitter: @McQandO

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